The devil is in the detail

Recently we have noticed a number of employers getting themselves in trouble when it comes to the disciplinary process. Often, these employers will have a good idea of what the employee has done wrong, but keep that detail to themselves. The key is not just knowing the details of an employee’s misconduct, but in sharing that information with the employee.

What does the law say?

The duty of good faith applies to the relationship between an employer and an employee. It requires both parties to be active and constructive in maintaining a productive employment relationship, and not to mislead or deceive each other. It also requires an employer who is proposing to make a decision that could have an adverse effect on the continuation of employment of an employee, to provide access to relevant information. Crucially, the information needs to be provided before a decision is made, and the employee needs to be given the opportunity to comment on it.

What does this mean in practice?

If an employer is putting an allegation to an employee that could result in disciplinary action, the employee must be given the relevant information about the allegation. This means providing all of the relevant information – in sufficient detail so that the employee can respond. If an allegation is vague, or unsupported, it makes it very difficult for an employee to respond. Allegations that an employee “doesn’t fit in” or “is rude” or “won’t toe the line” do not, by themselves, give enough information for an employee to respond. The employer needs to give detail: when was the employee rude? To whom? In what way were they rude? Is this the first time? Who saw/heard them being rude? Is there anything in writing that can be provided?

Giving this detail means that the employee understands the allegations against them, and can properly respond. It also means that the employer has put ‘everything on the table’ and is not withholding information – which would be a breach of the good faith requirement, and might mean that the process is unjustified.

What about anonymous complainants or secret witnesses?

An employer should tread very carefully when it comes to secret witnesses or anonymous complaints. An employee facing disciplinary action is (generally speaking) entitled to know who is accusing them. In some circumstances, the identity of the accuser/witness might make a difference – for example, the ‘accuser’ might have a particular axe to grind, or a reason to make up or embellish an accusation. In almost all processes, an employer should tell witnesses or complainants that their information and identity will be disclosed to the employee facing disciplinary action.

In very limited circumstances, there may be a right for an employer to withhold the identity of a witness, but this is generally only in circumstances where there is a serious and imminent threat to health and safety. Employers should seek advice if they think they might be in this situation

But shouldn’t I keep some information back?

Employers sometimes suggest that they will “save the good stuff for the Authority”, “only give the information if the employee asks” or “lets throw that on the table at mediation” – in other words, to intentionally ‘hold back’ some of the information or allegations, and provide it only if asked to or use it once a personal grievance is raised. This is way too late. If an employer had the information at the time of the disciplinary process, that is the time to use it. There is no point holding back on information with the intention of smiting an employee with it later. Such a plan only serves to throw doubt on the employer’s good faith, and does not assist in any way with the justification of the disciplinary action. Remember that the obligation is to provide the employee with information – not to hold on to it until the employee asks.

In summary

Provide all relevant information about the alleged misconduct to the employee, before a decision is made.

Make sure allegations have detail – sufficient for the employee to be able to respond.

Tread carefully when it comes to secret witnesses or anonymous complaints.

Erich Bachmann, the Managing Partner of Auckland based commercial law firm Hesketh Henry, has been awarded the Cross of the Order of Merit with Ribbon of the Federal Republic of Germany (Verdienstkreu...

30.10.2018

Building and Construction Law Journal

Construction partner, Nick Gillies, has been published in the latest Building and Construction Law Journal ((2018) 34 BCL 179).

Introduction
Following our Initial Note, the receivers of Ebert Construction Ltd (Ebert) released their first report on 1 October 2018. Then, on 3 October 2018, Ebert put itself into liquidation, wi...